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February 1, 2000


The opinion of the court was delivered by: McCLURE, District Judge.



On April 28, 1999, plaintiffs John and Mary Doe commenced this action against various defendants*fn1 with the filing of a complaint pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.*fn2; section 504 of the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794; Title IV of the Civil Rights Act of 1964 ("Title IV"); and 42 U.S.C. § 1983. Plaintiffs allege, inter alia, that defendants violated their civil rights by excluding plaintiffs from participation in the foster care program run by Centre County because of the disability of plaintiffs' son and on account of plaintiffs' race. See Complaint at ¶ 1.

Defendants filed a motion to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By order dated October 13, 1999, this court converted defendants' motion to a motion for summary judgment pursuant to Rule 12(b), noting that defendants' motion and supporting brief referenced matters outside of the complaint. The order set forth a supplemental briefing schedule for both parties to address the matters outside of the complaint raised in defendants' motion.

This matter is now fully briefed and ripe for disposition. For the reasons which follow, we will grant defendants' motion.

In addition, plaintiffs filed a motion for reconsideration of the October 13th order, and brief in support thereof. Although defendants have not responded to the motion, and the time has passed for defendants to file a timely response, the court will proceed to deny plaintiffs' motion on the merits.*fn3


I. Reconsideration Standard

The federal rules allow a party to move to alter or amend a judgment within ten (10) days of its entry. FED.R.CIV.P. 59(e). According to the Third Circuit, "[t]he purpose of a motion for reconsideration is to correct manifest errors of law or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). However, where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration. Id. at 909 (citing DeLong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1139-40 (3d Cir. 1980)). Accordingly, reconsideration motions will be granted only where (1) an intervening change in the law has occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a clear error of law or prevent a manifest injustice arises. North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Reconsideration of judgment is an extraordinary remedy; therefore, such motions are to be granted sparingly. NL Industries v. Commercial Union Ins., 935 F. Supp. 513 (D.N.J. 1996) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986)).

A. No Manifest Error of Law

Plaintiffs contend that "the Court's decision to convert defendants' motion constitutes a manifest error of law which will result in manifest injustice to plaintiffs." Plaintiffs' Supplemental Opposition Brief at 5. Plaintiffs base this argument on the proposition that both parties have conducted little or no discovery. Id.

We disagree. In fact, as set forth in defendants' supplemental supporting brief, the court indicated at the hearing on the motion for preliminary junction that it was likely that all the evidence presented on that day would be comprehensive with respect to the disposition of the case.

The court finds that the evidence introduced at the day long hearing is a sufficient basis for a motion for summary judgment. Indeed, it would be disingenuous for plaintiffs to assert that "little or no discovery" has taken place in light of the statistics, documents and testimonial evidence produced by both parties at the hearing. While a trial court should not generally convert a motion to dismiss to a motion for summary judgment where there has been little or no discovery "because the parties may not be able to present enough material to support or oppose a motion for summary judgment," Owens v. Hahnemann University, et al., Civ.A. No. 9404654, 1995 WL 392516 at *2 (E.D.Pa. June 27, 1995), the court finds that the factual record is sufficiently developed for the purposes of a summary judgment motion, as there are no material facts yet to be discovered.

In sum, it is our belief that conversion of the motion to dismiss to a motion for summary judgment is proper and will facilitate an appropriate disposition of this matter.

Accordingly, we will deny plaintiffs' motion for reconsideration. We will now proceed to analyze the merits of the motion for summary judgment.

II. Summary Judgment Standard

Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex at 323, 106 S.Ct. 2548. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex at 325, 106 S.Ct. 2548.

Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248, 106 S.Ct. 2505. The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Boyle at 393; White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).

If the moving party satisfies its burden of establishing a prima facie case for summary judgment, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Boyle at 393 (quoting, inter alia, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

III. Statement of Material and Undisputed Facts

In contravention of LR 56.1 of the Local Rules for the Middle District of Pennsylvania, defendants failed to file a "separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." LR 56.1.

In our order dated August 30, 1999 denying plaintiffs' motion for a preliminary injunction, the court set forth 116 findings of fact. See Order dated August 30, 1999 at 3-19. As the motion for preliminary injunctive relief arises out of the same set of facts as the motion for summary judgment, we will deem those facts to be material and undisputed which are set forth as findings of fact in our August 30th memorandum, and the same are incorporated herein by reference; provided, however, that findings of fact numbered 17, 51, 54 and 80 have been excluded in deciding the instant motion as either immaterial to our discussion, or subject to dispute.

A. Direct Threat

Plaintiffs contend that in the event the court denies their motion for reconsideration, we should grant a continuance pursuant to FED.R.CIV.P. 56(f) until plaintiffs have had the opportunity to conduct appropriate discovery relating to the material fact issues raised by defendants. See Plaintiffs' Supplemental Opposition Brief at 9.

However, as previously stated, the court does not believe there is a need for further discovery on any or all material issues raised in defendants' motion for summary judgment. John and Mary Doe have submitted an affidavit which states a need for extensive discovery "to address defendants' direct threat, qualified immunity and ripeness claims." Plaintiffs' Supplemental Opposition Brief at 10, citing Doe Affidavit, attached thereto as Exhibit A.

With respect to the direct threat allegation, the court finds that based on the evidence presented at the June 22, 1999 hearing, and affidavit submitted by the Does, there is no genuine issue of material fact as to the presence of a direct threat to a foster ...

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